Judge Eugene F. Pigott, Jr., wrote the dissenting opinion in the New York State Court of Appeals ruling in the case of Grucci vs. Grucci.Associated Press

STATEN ISLAND, N.Y. -- New York's highest court had an opportunity last week to strike a much-needed blow for innocent individuals maliciously accused of domestic violence by their spouses.

Instead, however, the Court of Appeals decided the case of Grucci v. Grucci incorrectly and, in the process, appears to have effectively abolished the tort of malicious prosecution in this state.

Plaintiff Michael Grucci and defendant Christine Grucci were married in 1988 and had two children. A few months after filing for divorce in 1998, Christine accused Michael of harassment and received an order of protection which directed him to remain away from her.

In January 2000, she accused Michael of violating that order. The allegation followed a heated phone conversation between the two, by that time divorced, about Michael's desire to take their children on vacation during the school term.

In support of her accusation, Christine gave police a sworn, written statement asserting that Michael had threatened to "put a hit on [her]."

The district attorney presented the matter to a grand jury, which returned an indictment accusing Michael of criminal contempt for using electronic means to place Christine in fear of death or injury. He was also charged with harassment.

After Michael waived a jury trial, the charges against him were heard by a county court judge. Finding Christine's testimony to be contradictory and incredible, the court acquitted Michael on all charges. He then sued Christine for malicious prosecution, asserting that she had lied to police and therefore caused him to be wrongfully charged and prosecuted.

To succeed in a malicious prosecution action, a plaintiff must establish that the defendant commenced a criminal proceeding against him; that the prosecution was concluded in his favor; that there was no probable cause for the prosecution and that the plaintiff was motivated by actual malice. Michael's lawsuit was knocked out on the very first of those requirements, when the jury concluded that Christine had not commenced the criminal proceeding against him.

In last week's decision, the Court of Appeals agreed, stating that it was the district attorney, not Christine, who had commenced the criminal case. In reaching that conclusion, the majority cited the trial testimony of an assistant district attorney that it was prosecutors who decided to present the case to the grand jury and, after indictment, to proceed to trial.

He testified to the district attorney's standing policy to prosecute all domestic violence cases where the police conclude that a crime has been committed.

However, as Judge Eugene F. Pigott, Jr., noted in his dissenting opinion, the source of the police's information was the statement given to them by Christine. But for her assertions — later found by a court to be contradictory and incredible — Michael would not have had to endure an arrest, indictment, and criminal trial.

Seemingly incredulous at the court's willingness to let Christine escape the consequences of what she, herself, put in motion, Pigott wrote, "The majority surely does not mean to hold that one who lies to the police in order to cause a criminal prosecution is immunized from a malicious prosecution suit because a prosecutor, misled by the false information, chooses to pursue the case."

Yet, that appears to be precisely what the majority held, a proposition which, Pigott noted, "would essentially abolish the tort of malicious prosecution."

The majority also rejected Michael's effort to introduce an audiotape in which Christine admitted that, far from being afraid of him, she had filed the criminal charges to force him to get psychiatric treatment.

While the court concluded that the tape wasn't properly authenticated, Judge Pigott pointed out that Michael's brother, a participant in the taped conversation, was prepared to testify that it was a fair and accurate account of the conversation between Christine and him.

According to well-established principles of evidence cited by Judge Pigott, including the leading legal treatise on the subject, the brother's testimony was clearly sufficient to allow the jury to hear the tape and determine what weight, if any, to give it.

In reality though, the admissibility of the tape became academic in light of the majority's holding that Christine did not commence the criminal proceeding against Michael.

Whether Michael Grucci would have won his malicious prosecution lawsuit had he not been cut off at the pass will never be known. What is clear, however, is that he deserved that opportunity.

False accusations of criminal wrongdoing remain one of the most significant obstacles in the ongoing battle against domestic violence, and child abuse and neglect. The ease with which they can be made and the difficult, sometimes impossible position in which those accused are thereby placed, cry out for meaningful legal remedies.

Springing from English common law, malicious prosecution lawsuits have traditionally provided the wrongfully accused with one important avenue of recourse. Instead of bolstering the availability of that tort, however, last week's decision by the Court of Appeals appears to have foreclosed it.

Considering what's at stake in the array of Family Law proceedings, that's really a shame.

[Daniel Leddy's column appears each Tuesday on the Advance Editorial Page. His e-mail address is JudgeLeddy@si.rr.com.]